University of Bath: when did the rot start?

Robert McKie was a member of staff fired by the University of Bath in 2008. For reasons explained below, he sued Swindon College over his sacking, and won. The judge, in finding against Swindon College, had some hard words for the University of Bath. When these concerns were raised within the university, the response of the governing body was to ignore them.

The case of Robert McKie raised a number of serious questions about management processes at the University of Bath, and about the operation of disciplinary and grievance procedures. An account of the actions taken by University of Bath management follows. The questions which arise from these actions are at the end of this paper. These questions have not been satisfactorily answered and there is no reason to believe that appropriate action has been taken to ensure that no member of staff will ever be treated in this manner again.

1. Action taken at University of Bath

Robert McKie started work as a Director of Studies in Lifelong Learning at the University of Bath on~20 May 2008. On~5 June~2008, the University received an email from Swindon College, Mr McKie’s former employer making vague allegations about him, and saying that he would not be allowed on the premises at Swindon. On~10 June~2008, the University of Bath fired Mr McKie, claiming that he could not do his job if he could not go to Swindon College. Mr McKie has since sued Swindon College and won his case on~16 February~2011.

1.1. Dismissal

On~5 June~2008, Nick Letchet, Principal of Swindon College, wrote to Faith Butt, Director of the Division for Lifelong Learning (DfLL) at the University of Bath: Faith,

Please find below the form of words that has been discussed with your HR director, which hopefully is sufficiently clear for your purposes. The `form of words’ was an email from Robert Rowe, Director of Human Resources at Swindon College to Robert Eales, Acting Director of Human Resources at the University of Bath: Further to our telephone conversation I can confirm to you that we would be unable to accept Rob McKie on our premises or delivering to your students. The reason for this is that we had very real safeguarding concerns for our students and there were serious staff relationships problems during his employment at this College. No formal action was taken against Mr McKie because he left our employment before this was instigated. I understand that similar issues arose at the City of Bath College.

Robert McKie was invited to a meeting to discuss this email, held on 10 June. Present were Mr McKie, Michael Carley (as union representative), Faith Butt and Robert Eales. At this meeting, Dr Butt claimed that if Mr McKie could not go on the premises at Swindon College, it was effectively impossible for him to do his job. Mr McKie disputed this and asked for some alternative arrangement to be made while he tried to clear his name. This request was refused and Mr Eales “and the other panel members [sic]” decided to fire Mr McKie.

The reason given for the dismissal was that Mr McKie was “unable to fulfil the full duties of [his] role because [Bath] received a request that [he] should not go on their site or deliver to their students.” At the meeting where Mr McKie was dismissed, however, Dr Butt said that as a Board Member at Swindon College she would not expect the College to make such serious statements. She said that the College must be very serious about this matter for it to be put into writing, which, as was found in the High Court, “rather gives the lie to the assertion that it was the simple fact of his being banned from Swindon that was the sole motivator behind his dismissal”. The judge also found it “staggering” that Dr Butt should have been part of a disciplinary process as it transpired on~10 June whilst being on the governing body of Swindon College \ldots It contradicts almost every rule, as it seems to me, about decision making in a quasi-judicial matter. There was a conflict of interest.

1.2. Appeal against dismissal

Robert McKie appealed against his dismissal. The appeal hearing was held on~2 July. The university panel was made up of Ian Jamieson, then Pro-Vice-Chancellor for Learning and Teaching, Martin Williams, Head of Financial Services, and Phillip Willis, then Head of Computer Science, with Scott Blum, Human Resources Manager in attendance. Robert McKie was accompanied by Michael Carley. The appeal was based on a number of grounds, among them:

Robert McKie was not told that he might be dismissed so he did not prepare a robust defence;

the ACAS code of practice was not followed;

the impression given by Faith Butt that the email from Robert Rowe had come `out of the blue’ when it was clear that she had communicated with the Principal of Swindon College in advance;

Faith Butt’s undeclared conflict of interest in that she did not disclose that she was a governor of Swindon College.

As was noted at the original dismissal, “safeguarding issues” should have been reported to the police, but Swindon College had not done so. Scott Blum claimed, however, that “there were reasons why Swindon College had asserted what it did, ie [sic] serious staff allegations and one affecting minors”. It was repeated that this would have been reported to the police but on the contrary, Robert McKie “said that Swindon College had given him a reference to work with minors”. No evidence has ever been produced for the claim that Swindon College “had reasons” for its assertions and certainly not for any allegations “affecting minors”. It also appears that Mr Blum had some knowledge of the nature of allegations against Mr McKie.

The appeal was rejected on the grounds that even though there were questions about the procedure, “the panel believes that the decision taken was correct” and that Dr Butt’s being a Governor of Swindon College had no bearing on her decision to fire Mr McKie.

1.3. Grievance

On~12 June, Robert McKie submitted a grievance against Faith Butt arising from the dismissal meeting. The grounds for the grievance were that Dr Butt did not declare her conflict of interest, that she made errors in stating Mr McKie’s duties and that she refused to make any short term arrangements to allow him to remain in his job while he challenged Swindon College. He asked that the University rescind his dismissal and either temporarily realign his duties or place him on unpaid leave of absence for three months, so that he could clear his name.

The grievance hearing was held on~5 September, chaired by Kevin Edge, then Pro Vice-Chancellor for Research. Bruce Keeling from Human Resources and Faith Butt also attended, with Michael Carley representing Mr McKie, who was unable to attend. At this hearing, Dr Butt said that The original complaint came from a member of the senior management team at Swindon concerning a board of examiners due to take place that week. and that I cannot say what the complaint was, or that is [sic] was correct, it was only hearsay and I have nothing in writing. She later said that you have to understand that when the allegations were made, they had been common knowledge already among staff, and I had to put and [sic] end to very unpleasant discussions. It was in everybody’s best interest to deal with the rumour mongering as expeditiously as possible. The grievance was dismissed on the grounds that Dr Butt’s being a Governor at Swindon College had no bearing on the conduct or outcome of the dismissal meeting.

1.4. Grievance appeal

Robert McKie appealed against the dismissal of his grievance. This appeal rested on a number of grounds. The first of these was the close communication between Faith Butt and Swindon College, communication which revealed a close professional relationship and threw into doubt her claims that she separated her roles at Swindon and at Bath.

A second arises from a statement made by one of Faith Butt’s subordinates. In this statement, this person said that it was not essential for Robert McKie to go to Swindon to do his job. Subsequently, Dr Butt took a new statement from her subordinate in which this person said that it was essential for Mr McKie to go to Swindon, and adding some claims about Mr McKie’s conduct. The grounds for the appeal were that Dr Butt should not have taken this statement, in effect interfering in the investigation.

Another element of the appeal is laid out in a follow-up letter to the Director of Human Resources, where Robert McKie asked for a statement detailing the conversation between the individual within the Division for Lifelong Learning originally contacted by Swindon College as well as the name of the Swindon College employee concerned. \ldots I believe that allowing University employees who have played a significant role in this matter to remain anonymous and withhold relevant information would compromise integrity of outcome.

The~5th September hearing notes reveal that Dr Butt contacted Swindon College in relation to rumours passed on to her by staff. Therefore I would like to know on whose authority Dr Butt (or Robert Eales if this was the case) contacted Swindon College. This was done without my knowledge or consent.

The appeal was heard on~22 October, by Mark Humphriss, University Secretary. Also present were Kevin Edge and Jeanette Johnson, Human Resources Manager. Robert McKie was accompanied by Michael Carley.

The appeal was ruled unsuccessful. Once again, it was ruled that the conflict of interest was irrelevant. Regarding the admissibility of the statement from Dr Butt’s subordinate, Mr Humphriss ruled: It is unfortunate that this statement was obtained by Dr Butt, given that it relates to a grievance against her, rather than by an independent person. However, especially as this was only obtained latterly and therefore does not affect the decision at the dismissal or dismissal appeal stages, I do not consider that this is materially relevant to your grievance against Dr Butt. Finally, The University’s request [to Swindon College] for clarification was made only as a direct response to the information it received verbally. I do not believe it was necessary for your permission to be obtained for that clarification to be sought.

Having exhausted the internal process at Bath, Robert McKie successfully sued Swindon College. In his judgment, the High Court judge hearing the case made reference to the University’s conduct: Be that as it may, he was summarily dismissed. I have indicated that, in my view, the proceedings were not fair. I am not going to repeat that. The decision was not fair. [Robert McKie] was given no opportunity to consider his position. Again, an elementary rule of procedural fairness in connection with any sort of proceedings that [sic], if an allegation is made against you, you should be given a reasonable period of time to deal with that allegation, which includes getting evidence.

The University broke no laws. In law, the firing of Robert McKie was not an unfair dismissal, because he had not accumulated the employment rights which might have given him some protection from arbitrary dismissal. But, as the judge said, the University “could act unfairly with impunity”.

2. Questions arising

From the account given, assembled from the public evidence, it is clear that:

a senior manager, with an undeclared conflict of interest, communicated with an outside body which was concocting lies about a member of staff, and unjustly dismissed that member of staff, on the basis of allegations which were unsubstantiated, grossly untrue, and which were obviously untrue at the time they were made;

the three most senior staff below the level of Vice-Chancellor found that there was nothing substantially wrong with this dismissal;

managers, and at least one member of staff in Human Resources, acted on the basis of these unsubstantiated lies, though without ever telling the member of staff what the allegations were;

there has no been no attempt on the part of the University to investigate the case, or to try to find out why it was allowed to happen;

there is no good reason to believe that there has been any change in procedures or management’s attitude to the fair treatment of staff.

The University Secretary (Court,~4 April~2012) will say no more than that lessons have been learned, although in the course of his statement to Court, he claimed that there were “safeguarding issues”. This is an extremely worrying statement, since it contradicts those made in~2008, when it was claimed by Dr Butt, and repeated throughout the disciplinary appeal and grievance process, that the nature of the allegations against Mr McKie was irrelevant to the decision to dismiss him (although see~§1).

The change which the University definitely claims to have made is described in a letter to members of Council: The only general comment made by the Judge which may apply to a future case related to the letter inviting Mr McKie to the disciplinary meeting. A procedural change which is underway will ensure that there is no potential ambiguity in future letters. Firstly, this `procedural change’ does not arise solely from the McKie case but from a different case in which a Head of Department deceived one of his academic staff as to the reason for his attendance at a meeting where a researcher was dismissed, denied that researcher basic legal rights, and was then supported by Human Resources. Secondly, the judge’s comments applied to rather more than the `letter inviting Mr McKie to the disciplinary meeting’: he also commented on the gross unfairness of the procedure, as described above. Since the University Secretary, speaking for the University as an employer, claims that the only comment which need be taken into account is that on the `letter’, we must assume that the University as an employer does not believe it needs to consider the other issues raised.